Shepp v. Shepp - Pennsylvania Supreme Court - September 27, 2006 majorityhttp://www.courts.state.pa.us/OpPosting/Supreme/out/J-97-2004mo.pdf
Analyzing the case under the U.S. rather than Pennsylvania Constitution (whose religion clauses, Article I, sections 3 and 4, are set out at the end of this summary), the state supreme court held that a father's teaching the parties' 13 year-old daughter about plural marriage and polygamy under Mormon Fundamentalism was protected by the free exercise clause of the U.S. Constitution, since there was no interest of "the highest order" that overrode father's First Amendment rights. The court said that it was "clear that the Commonwealth's interest in promoting compliance with the [state] statute criminalizing bigamy is not an interest of the 'highest order' that would supersede the interest of a parent in speaking to a child about a deeply held aspect of his faith" so long as that speech is not "causing or will cause harm to a child's welfare."
The trial court had prohibited the father from teaching the minor child about polygamy and plural marriages, even while finding "no evidence of a grave threat to the child" from such speech by the father. The Superior Court, 821 A.2d 635 (Pa. Super. 2003), found that conclusion "both erroneous and unreasonable" in light of the evidence, including the testimony of one of mother's children from another marriage that father had told her she'd go to hell if she failed to practice polygamy and that father and child (age 14) should marry because they were living under the same roof -- testimony which the trial court found credible.
The Supreme Court found that the Superior Court had engaged in "speculation that Father's statements to his stepdaughter might lead to insistence that his own child engage in polygamy" and in doing so had "improperly substituted its judgment for that of the trial court."
The Supreme Court "emphasize[d] that the illegality of the proposed conduct on its own is not sufficient to warrant the restriction " about teaching the virtues of plural marriage where there was "no finding that discussing such matters constitutes a grave threat of harm to the child...." In these circumstances, the court held that "there is insufficient basis for the court to infringe on a parent's constitutionally protected right to speak to a child about religion as he or she sees fit.....Because such harm was not established in this case, there was no constitutional basis for the state's intrusion in the form of the trials court's order placing a prohibition on Father's speech."
The concurring opinion (Eakin, J.) expressed "misgivings about the application of the strict scrutiny test," claiming the case didn't involve government infringement of any fundamental right. Justice Eakin also was concerned about the majority in effect making the the father's religious rights superior to the mother's "fundamental right to raise [her child] without learning about plural marriage," which the majority opinion rendered "substantially less valuable" than the father's. The justice felt that the parent's opposing rights had a "cross-out" effect on one another.
The dissent (Baer, J.) felt that there was adequate support in the record to uphold the restrictions on father's teaching the child about plural marriage, in that he had "crossed the line between expression and conduct," since he "had every intention" of following through on his beliefs "and, unchecked, would do whatever he could, in his position of considerable authority as Child's parent, to lead Child into a life of polygamy while still of tender years" -- a "factual finding....entirely supported by the evidence of record...." The dissent said that "parental decisions are entitled to no peculiar respect if they 'will jeopardize the health or safety of the child, or have a potential for significant social burdens.' "
Pennsylvania Constitution Article I, sec. 3 - Religious Freedom
- All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.Article I, sec. 4 - Religion
- No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.